1990 Supreme(MP) 514

IN THE HIGH COURT OF MADHYA PRADESH
B.C. VARMA, D.M. DHARMADHIKARI, JJ.
Shri Ram Janki Mandir – Appellant
Vs.
Purushottam Prasad – Respondent
M.P. No. 2162 of 1988 (J)
Decided on : 02-07-1990

Headnote:Civil Procedure Code, 1908 – – O.39, R.1 and 2, O. 40, R.1 – – party in possession and coming to Court – – cannot be dispossessed by appointing receiver.

        Short Note

       1. The petitioners filed a suit in respect of certain property, including some agricultural – lands. They claimed title to it and say that it is a private Trust. The petitioners asserted that they are managing the affairs of the Trust and are in possession of its property. They want a declaration of their title and injunction against the respondents not to interfere with their possession over the suit lands. During the pendency of the suit, the respondents made an application under order 40, rule 1 CPC for appointment of a receiver. Although no person was actually appointed as receiver and only certain names were proposed for that purpose, the petitioners filed an appeal against that order. That appeal was dismissed vide Annexure – D. The petitioners are challenging both these orders in this petition.

       2. Held : Learned counsel for the respondents – defendants urged that the petitioners are not maintaining proper accounts, that they are misappropriating the property of the Trust and they are claiming interest adverse to the Trust itself. It was added that no application has been made for getting it registered as a public Trust, although, according to the respondents, it is obviously a public Trust. Even if it is so, by that process, the possession from the petitioners cannot be taken away. If the respondents allegations are true, the petitioners Nos. 2 to 4 have rendered themselves liable to account for the Trust property. That can well be done even if the petitioners' possession is not disturbed. Learned counsel for the respondents could not point out that the petitioners' possession was wrong and even if they were not disturbed, there would be any injustice to the respondents. That being so, we are of the opinion that by the device of making an application under order 40, rule 1 CPC, the petitioners, who have come to the Court to claim relief of injunction against the respondents, cannot be dispossessed. In our opinion, therefore, the orders (Annexures C and D) cannot be maintained.

       Petition allowed.